A Review of Art Law in the Supreme Court

Kathryn MacMillan*1

I. Introduction

Art law cases are a rare occurrence in the U.S. Supreme Court. The precedents in place are highly valued in the legal system, prioritizing creativity and craftsmanship. The key determinant of art and the protection of art is in direct association with how cases in the Supreme Court have defined art and its purpose. The Court in National Endowment for the Arts v. Finley (1998) defined art, stating that it took into consideration “general standards of decency and respect for the diverse beliefs and values of the American public.”2 This definition sets a standard of merit and decency of art, exhibiting respect for both the artist and the public interest.

The First Amendment to the U.S. Constitution protects this freedom of expression by claiming that “Congress shall make no law . . . abridging the freedom of speech.”3 Therefore, the preceding decisions of the Court concerning art law are based upon the foundation of respecting the First Amendment. Additionally, the Court in National Endowment for the Arts defines the scope of the protection of the First Amendment, writing that “regulations and procedures shall clearly indicate that obscenity is without artistic merit, is not protected speech, and shall not be funded.”4 This foundation of the Court distributes power to the artist and original owner of the art, respecting the culture and public speech the art is intended to represent. This foundation of representation is the valuing of the embodied culture within the art and the intended creator’s perspective while respecting the decency of the First Amendment. The Court defines ownership versus authorship by contrasting creative head versus production and manufacturing to set a precedent for copyright in art law.5

Additionally, organizations such as the National Endowment of the Arts (NEA) determine the allocation of funding is distributed on the basis of how the precedent defines art within the bounds of the First Amendment. Therefore, since very few cases concerning the matter of art law reach the Supreme Court, these cases carry a heavy weight in the legal system, promulgating value and protection for the creative head and craftsmanship.6 This Note will review the Supreme Court cases Tutton v. Viti (1883), National Endowment for the Arts v. Finley, Bleistein v. Donaldson Lithographing Co. (1903), and Republic of Austria v. Altmann (2004), elucidating how the Supreme Court has continued to set precedents of creativity of craftsmanship, protection of artist’s rights, and respecting freedom of speech within the bounds of public interest.

II. Defining Art

The landmark case Tutton v. Viti constituted one of the Supreme Court’s first attempts to define art, specifically with respect to the distinction between art and production.7 The case centered around the craftsmanship of marble statues and sculptors creating replicas in art class, questioning whether the replicas qualified as art.8 The Court held that “[t]here is nothing in the acts of Congress to limit the professional productions of a statuary or sculptor to those executed by a sculptor with his own chisel from models of his own creation.”9 The Court’s opinion sets a precedent of valuing an artist’s skills subject to tangible execution and refers to the creator to define art. The appellant argued that “the statues were made by men not really professional sculptors, though calling themselves such, and were not real works of art, but mere manufactures of marble by good artisans.”10 Although the appellant argued that ‘real’ art can only originate from the original creator, the Court supported defining art in a physical sense. The Court’s opinion, in favor of the replicas of the statues, emphasized the importance of physical craftsmanship of the artist, claiming that replicas are indeed “professional productions of a statuary or of a sculptor.”11 The Court stated creativity and art are defined by a person’s ability to create, regardless of where the idea originated from. Therefore, an emphasis on the physical process of making art is created, supporting art as a focus on true craftsmanship. Tutton v. Viti characterizes the production of art as a public and participatory act, broadening the idea that art is defined with respect to the tangible concept, such as the physical skill set of the creator and the artist’s intended perspective.

A. Allocation of Funding for Art

The Supreme Court case National Endowment for the Arts v. Finley addressed the interpretation of the First Amendment concerning art in accordance with standards of decency and public interest.12 The NEA had awarded grants to controversial art pieces, such as the funding to restore a Robert Mapplethorpe exhibit, “The Perfect Moment” containing pornographic images,13 therefore raising questions about how the freedom of speech can be respected while preserving community standards of decency. The Court delivered an opinion that protected the artist’s right to the freedom of speech while also respecting public interest. The Court found that the National Foundation on the Arts and Humanities Act of 1965 (“the NFAH Act”) did not violate the First Amendment or the Court’s jurisprudence on decency standards.14 The NFAH Act established an Independent Commission, an advisory panel to review the allocation of funding to worthy art, which judged art on the parameters of “artistic excellence and artistic merit.”15 Justice Sandra Day O’Connor, delivering the majority opinion, stated that the NFAH Act did not violate the First Amendment. The opinion of the Court broadened the interpretation of the First Amendment, building on the idea of art being a protected category of free speech.

Additionally, the Supreme Court set a precedent of defining art by placing qualifications for allocation of funding, demonstrating that there is a divide between what art is and what it is not. The regulations set by the Independent Commission created in the NFAH Act described specific qualifications for distribution of funds.16 Allocation of funding is set to promote creativity among artists and further support diversity within the artistic community. National Endowment for the Arts v. Finley set the precedent for allocation of funding by setting a standard of function and purpose of art, therefore defining the function and purpose of art as prompting “artistic and cultural significance.”17 The significance is to encourage Americans to participate in the arts with the support of independent federal grants. Therefore, these parameters set a standard of encouragement of the creative individual, not purely an institution. The definition of “artistic and cultural significance” set a precedent of support for creativity and diversity of culture. Thus, National Endowment for the Arts v. Finley not only marks a creative precedent but a cultural one, utilizing art to set a standard of diversity within society.

B. Evolution of a Creative Item

Bleistein v. Donaldson Lithographing Company set the standard of evaluating a creative item.18 The case arose after George Bleistein, an employee of Courier Lithographing Company, was hired by Benjamin Wallace, the owner of a local circus, to make posters advertising the performance acts in the show.19 Later, when Wallace needed additional posters, he commissioned Bleistein’s competitor, Donaldson Lithographing Company, to produce copies.20 Bleistein subsequently sued Donaldson for copyright infringement.21 Copyright is broadly defined as “the exclusive legal right, given to an originator or an assignee to print, publish, perform, film, or record literary, artistic, or musical material, and to authorize others to do the same.”22 In Bleistein, Donaldson argued that the original posters were not subject to copyright protection since they served as advertisements. Writing for the majority, Justice Oliver Wendell Holmes argued that commercial function and aesthetic value are not mutually exclusive:

[A]t the one extreme, some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge. Yet if they command the interest of any public, they have a commercial value—it would be bold to say that they have not an aesthetic and educational value—and the taste of any public is not to be treated with contempt.23

Commercial advertisement is protected by copyright law because the pictures still have aesthetic value and are manufactured by an artist. The Court defines the evaluation of a creative item by origin of the art, granting ownership to the creator and their art.24 The relationship between the creative item and creator was protected by the decision, continuing to exhibit expansive protections of the rights of artists and art.

III. Protection of Stolen Art

In Republic of Austria v. Altmann, Maria Altmann sued for six art pieces by Gustav Klint that had been stolen from her uncle by the Nazis during World War II and sold to various galleries throughout Austria.25 Atmann wanted the paintings returned to her residence in California and to the intended galleries listed in her uncle’s will.26 The case turned on the proper interpretation of the Foreign Sovereign Immunities Act of 1976, which “is the primary means for bringing a lawsuit against a foreign sovereign or its agencies and instrumentalities.”27 However, since the definition of immunity employed by the United States when the paintings were taken was significantly broader than that contained within the Foreign Sovereign Immunities Act, and would have protected Austria from litigation, Austria argued the former definition should apply.

Looking to the Act’s provision that “[c]laims of foreign states to immunity should henceforth be decided by courts of the United States . . . in conformity with the principles set forth in this chapter,”28 the Court held that the “Congress intended courts to resolve all such claims ‘in conformity with the principles set forth’ in the Act, regardless of when the underlying conduct occurred.”29 That is, the Act does indeed apply retroactively. The Court ultimately decided to return the art to the original intended location and decided that Austria lacked immunity in this case.30

This case established a precedent of repatriation and protection of cultural heritage concerning the protection of stolen art. The Supreme Court has prioritized valuing the origin and ownership of the art, particularly in this case, as her aunt was used as the muse for one of the paintings, “Woman in Gold.”31 Ultimately, the Supreme Court’s opinion concluded to apply the Immunity Act retroactively, prioritizing the original intention of the placement of the art and repatriation.

IV. Conclusion

Supreme Court precedents show that the Court generally favors the artist and strives to protect artists’ creativity, craftsmanship, and expression. In this context, therefore, the Court has generally supported an expansive right to freedom of speech. The Court has demonstrated that the priority of art is a sign of respect for the individual’s rights and the common good of society. The Supreme Court has fairly applied the First Amendment to protect artist’s rights and promote craftsmanship. The Court opinions discussed in this Note have contributed to an overall expansion of the First Amendment within artists’ ownership of their creativity.32 Therefore, the opinions have worked to promote as a symbol of respected individualism, creativity, and speech in the United States.

  1. *B.S. Candidate, Class of 2025, Fordham Gabelli School of Business at Rose Hill. Thank you to the FULR Editorial Board and my incredible Senior Editor, Nicoletta Loukas, for your endless guidance and assistance. Thank you also to my family and friends for your support, and to my inspiration, Juana Boada.
  2. Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 572 (1998).
  3. U.S. Const. amend. I.
  4. Nat’l Endowment for the Arts, 524 U.S. at 574.
  5. Art Law in the Supreme Court, Center for Art Law (Dec. 29, 2020), itsartlaw.org/2020/12/29/art-law-in-the-supreme-court/.
  6. See id.
  7. Tutton v. Viti, 108 U.S. 312 (1883).
  8. Id.
  9. Id. at 313.
  10. Id. at 314.
  11. Id. at 313.
  12. Nat’l Endowment for the Arts, 524 U.S. at 572.
  13. Id. at 574.
  14. Id. at 572.
  15. Id.
  16. Id.
  17. Id.
  18. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903).
  19. Id. at 248.
  20. Id. at 248.
  21. Id.
  22. U.S. Copyright Office Definitions, U.S. Copyright Office (last visited Apr. 2, 2022), www.copyright.gov/help/faq/definitions.html.
  23. Bleistein, 188 U.S. at 251.
  24. Id.
  25. Republic of Austria v. Altmann, 541 U.S. 677 (2004).
  26. Id.
  27. Foreign Sovereign Immunities FAQs, Law Offices of Charles H. Camp (2022), https://www.charlescamplaw.com/faqs/foreign-sovereign-immunities-faqs/.
  28. 28 U.S.C. § 1602.
  29. Altmann, 541 U.S. at 697.
  30. Id. at 700.
  31. Patricia Cohen, The Story Behind ‘Woman in Gold’: Nazi Art Thieves and One Painting’s Return, The New York Times (2015), https://www.nytimes.com/2015/03/31/arts/design/the-story-behind-woman-in-gold-nazi-art-thieves-and-one-paintings-return.html.
  32. Barbara Hoffman, “Law for Art’s Sake in the Public Realm,” 17 Critical Inquiry 540 (1991).